Accused in sexual assault trial testifies, maintains encounters with niece were consensual

The trial of a man accused of sexually assaulting his niece multiple times over a seven-year period continued in a Kamloops courtroom Monday, with the accused maintaining all sexual encounters were consensual.

Nihal Maligaspe gave his testimony in front of a B.C. Supreme Court jury on Monday, saying his niece — Dinushini Maligaspe — was the one who first instigated sexual contact a little while after she moved into his family home.

Maligaspe is standing trial on three counts of sexual assault related to incidents alleged to have taken place between 2002 and 2008.

Court heard last week Maligaspe helped Dinushini immigrate to Canada from Sri Lanka on a student visa in 2001, after which she began taking nursing classes at the University College of the Cariboo — now known as Thompson Rivers University.

Defence lawyer Jay Michi asked Maligaspe to describe what happened the first time the two had sexual contact.

Maligaspe said the first encounter happened when he was watching a movie while alone with Dinushini in his Kamloops home.

“I put the movie on, and I’m sitting down on my recliner and lights were off. She came into the room from downstairs, and she walked towards me, jumped on me, sat on my lap and she put her arms around me and kissed me,” Maligaspe said.

Maligaspe said Dinushini asked him if she would get pregnant, to which he responded that he had had a vasectomy. He said he carried her to the couch where the two proceeded to have sex.

Michi asked who instigated the encounter.

“She did,” Maligaspe responded, adding that he didn’t hear Dinushini say no or stop while sexual contact was taking place.

“It was consensual.”

Last week in court, when asked about the same encounter, Dinushini denied approaching Maligaspe in such a manner. She said Maligaspe forced himself on her, and said she didn’t consent to the sexual encounter — or any of the several encounters which took place over the years.

Last week, court heard Dinushini failed a key university course later in her schooling, fell into a deep depression, and attempted to commit suicide in her bedroom by taking pills.

Crown prosecutor Katie Bouchard said Dinushini woke up to the accused having sex with her.

On Monday, Michi asked Maligaspe to describe what happened on that day.

“I went downstairs and I knocked on the door and the door was ajar. I knocked on the door and I heard no sounds,” Maligaspe said.

“She was laying on the bed with her underwear and a top. …She had something pink on her hair and it was pills.”

Maligaspe said he saw Dinushini turn to look at him, after which he took 28 pills out of her hair.

“She was steady, she was responsive, she was smiling,” he said, adding the two sat on the bed and talked for about 15 minutes about a fundraising effort before she instigated sex.

Maligaspe said she wasn’t unconscious, and she didn’t have vomit in her face or in her bed — which is what court heard during Dinushini’s testimony last week.

“We had consensual sex that day. She was perfectly well, and we were sitting on the bed about 15 to 20 minutes. She’s the one who made the move first by climbing on to me and then we made love. We had sex,” Maligaspe said.

During cross-examination, Bouchard asked Maligaspe, who confirmed he had worked as a mental health nurse, about the suicide attempt.

Bouchard played parts of an audio recording taken by Dinushini during a 2019 phone call when she confronted her uncle about past events. Court heard Maligaspe didn’t know he was being recorded at the time.

Maligaspe is heard over the call telling Dinushini he felt something was wrong when he walked into her room that day, as Dinushini’s response to him was “really low.”

“Her response wasn’t really low because she had just woken up, I’d put to you,” Bouchard said.

“I’d say so,” Maligaspe responded.

“When she woke up she wasn’t acting like she just woke up — it was worse than that,” Bouchard said.

Maligaspe said that wasn’t true, and said Dinushini seemed steady when he walked her around the room.

Bouchard asked why Maligaspe hadn’t told anyone Dinushini had tried to kill herself, and why he didn't talk to Dinushini herself about the suicide attempt.

Maligaspe said because he had found pills and Dinushini was walking around, “to me, it was not a suicide attempt.”

Bouchard asked Maligaspe to explain why he can be heard in the audio recording saying he “took advantage” of Dinushini in that situation.

“You said that because it was the truth,” Bouchard said.

Maligaspe said that wasn’t the case.

“I was trying to apologize to her for what she’s going through and I was trying to get off the phone, and I was hoping against hope, I tried to speak to her that if she accepted my apology, if I said the right thing, she would accept my apology and this would not go to my wife and kids,” Maligaspe said.

He denied taking advantage of Dinushini on that day.

The trial is expected to continue throughout this week.